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Aboriginal Law
The Paths We Walk: New Ways to Address Ancient Rights?
John Rowinski*
Crown — First Nation relations are presently at a critical stage.
These relations have been through a bumpy road since long before the Royal Proclamation of 1763 publicly declared the great “frauds and abuses” committed against the First Peoples of these lands. There have been attempts to address these uneasy relations by means of the various treaties entered into throughout the 18th, 19th and 20th centuries, and the passage of the first version of the Indian Act in 1876 (and predecessor legislation). However, Crown manipulation of treaty language and the “inconsistent” interpretation and adherence to treaty terms have caused confusion and conflict between the parties. Dissatisfaction with the Indian Act by all those interested is well-documented.
It is trite to conclude that this relationship has been rife with conflict since its very beginnings. The roots of the problems are notorious. The obvious causes include different understandings of treaty entitlements and promises and a persistent patriarchal attitude and administration of Native affairs, all of which are perpetuated by archaic legislation.
The broken relationship can be spared yet another forensic analysis. What it needs are viable solutions. Resources in the form of financial aid, education and training are often brought up, but on their own are mere band-aids that barely cover open wounds. There is certainly a place for money and educational infrastructure, but these fall far short of the more comprehensive re-definition of the relationship required to alleviate the culture of dependence and stamp of Crown control over Canada’s Indigenous Peoples.
Independence is a two-way street. The governments of the land understandably do not want to write cart blanche cheques. First Nations do not want to be reliant on government funding which is unstable at best and subject to inevitable bureaucratic processes and constraints. Independence, therefore, must come in part from policy and in part from a new mindset. It is a mindset of mutual respect and goals, from agreements between equals.
Developments in the past few years seem to be pushing this change of mindset to the forefront of the relationship. The federal government’s recognition of First Nations’ fundamental right to self-government, the Supreme Court’s direction that Indigenous Peoples be meaningfully consulted (with a goal of reconciliation), and numerous public stands taken by Native stakeholders including a national day of action have increased the urgency of relationship repair.
So from all of this, is anything on the horizon that gives reason for optimism? The short answer is “maybe”. The federal government has recently indicated its intention to once again review the claims resolution process. The earliest toe dipping in the water is reform of the process to create an independent body to examine claims and administer appropriate remedies including compensation. The idea is to end the longstanding practice of having the federal government act as defendant, investigator and judge of First Nations’ claims.
Reform of the claims process is an obvious first step to healing the Crown – First Nation relationship. With hundreds of claims stalled in the current regime, and unknown hundreds more still undiscovered, a process needs to be established in which all sides can have some faith that a fair and impartial resolution can be reached, in a timely fashion, rights long assumed for all other citizens of this Canada.
A specialized body with knowledgeable adjudicators also recognizes that there are two different systems of law to be considered in the process.
Our optimism must be cautious. We have heard these overtures before, only to see them washed away with changes in government or a shifting of priorities. Even if the momentum for change continues, the process for determining useful reform will be critical. Aboriginals, Métis and Inuit must have a meaningful say in reform. The reformed system must not be subject to arbitrary limits such as “cut-off” dates for making claims or “caps” on compensation. In other words, the system must be the equal of the best and most efficient judicial system, or else nothing will have been fixed.
And of course dispute resolution is only one step along the way to healing Crown – First Nation relations in Canada. Hundreds of years of simmering animosity will not go away with a quick wipe of the slate. But the renewed prioritization of Aboriginal issues on the socio-political agenda is significant, and is the source of some hope that leadership on both sides will seize upon this current momentum to walk a new path of friendship together. Otherwise we may never leave this current road of discord and disdain.
These are exciting and vibrant times in the field of First Nation relationships with the Crown, and those of us who are intertwined professionally and personally with these relationships have much to work on in the months and years ahead in order to get the parties on the right path together.
* John Rowinski, Olthuis, Kleer, Townshend, (416) 981-9343, jrowinski@oktlaw.com. John is the Chair of the Aboriginal Law Section, 2006-2007.
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Administrative Law
The Standard of Review (Revisited) and the Effect of Voluntary Codes
Carole Prest*
 The recent Supreme Court of Canada decision in Council of Canadians with Disabilities v. Via Rail Canada Inc, [2007] S.C.J. No. 15 shows a significant divide on the Supreme Court of Canada on several questions of fundamental importance to administrative law lawyers. This article will touch on two of them: what is the standard of review? And how strictly should a “voluntary” code be applied?
Background
These questions arose in the context of an appeal from a decision of the Canadian Transportation Agency ordering VIA to modify its “Renaissance Cars” to make them more accessible. The Renaissance Cars had initially been used on the overnight train service through the Channel Tunnel. VIA purchased 139 cars at a discounted price when this service was discontinued. To summarize in very broad terms, the Council of Canadians with Disabilities had complained that many features of the cars constituted undue obstacles to the mobility of persons with disabilities, citing the “minimum standards” set in a voluntary Rail Code which had been adopted by VIA in 1998. VIA was given the opportunity to provide specific evidence on why the obstacles were not undue and to submit feasibility and costing information on the remedial options being considered. VIA did not cooperate whole-heartedly in providing information and, instead of asking for more time to submit more complete information, asked the Agency to render its final decision. The Agency did so, requiring VIA to modify 13 economy coach cars and 17 service cars, so that there would be one personal wheelchair accessible car on each daytime train and one car with personal wheelchair accessible sleeper facilities on each overnight train.
In the Federal Court of Appeal, VIA succeeded in having the decision remitted to the Agency for redetermination, taking into account VIA’s network and cost considerations. This was partly based on a report which VIA obtained shortly after the Agency’s decision issued, which estimated that the cost of implementation would be at least $48 million.
Standard of Review
A majority of the Supreme Court of Canada reversed the Federal Court of Appeal and upheld the Agency’s decision. Abella, J., on behalf of McLachlin, C.J. and Bastarache, LeBel and Charron, J.J., emphasized the need to respect the Agency’s expertise and not to undercut it by treating every provision of the governing legislation as raising jurisdictional issues. The patently unreasonable standard of review applied to the decision as a whole; there was no separate jurisdictional issue requiring review on a standard of correctness. While the Agency’s mandate had human rights aspects, the human rights and transportation issues were inextricably interwoven and the standard of correctness did not apply.
The Agency’s decision was characterized as one “with many component parts, each of which fell squarely and inextricably within its expertise” which was entitled to a “single deferential standard of review”. Abella, J. went on to say at paras. 102-3:
I appreciate it is a conceptual challenge to delineate the differences in degrees of deference between what is patently unreasonable and what is unreasonable. Both, it seems to me, speak to whether a tribunal’s decision is demonstrably unreasonable, that is, such a marked departure from what is rational, as to be unsustainable. This issue was, in my view, persuasively canvassed by my colleague LeBel J. in his concurring reasons in Toronto (City) v. C.U.P.E., Local 79, [2003]3 S.C.R. 77…and requires no further elaboration here.
But whatever label is used to describe the requisite standard of reasonableness, a reviewing court should defer where “the reasons, taken as a whole, are tenable as support for the decision” (Ryan, at para 56) or “where…the decision of that tribunal [could be] sustained on a reasonable interpretation of the facts or of the law” (National Corn Growers Assn. v. Canada (Import Tribunal), ….The “immediacy or obviousness” to a reviewing court of a defective strand in the analysis is not, in the face of the inevitable subjectivity involved, a reliable guide to whether a given decision is untenable or evidences an unreasonable interpretation of the facts or law.” [emphasis added]
The minority, written by Deschamps and Rothstein, J.J. (Binnie and Fish, J.J. concurring), relies instead on the standard of review jurisprudence which recognizes the value of segmenting decisions into discrete issues and then applying the appropriate standard of review to each issue. In their view, subjecting all aspects of a decision to a single standard of review does not account for the diversity of questions and runs the risk of either insulating the decision from an appropriately exacting review or requiring too exacting a review. The minority also objects to the addition of another term, “demonstrably unreasonable” to an already complex area.
The minority segmented the Agency’s decision into jurisdictional issues and determinations based on the application of human rights principles to federal transportation. These issues all required a correctness standard; they were pure questions of law and the Agency did not have greater expertise than the courts. While the minority agreed that the Agency had jurisdiction on a correctness standard, the Agency had erred in law regarding the test for determining an “undue obstacle”.
The minority’s “undueness” analysis places more emphasis on the magnitude of the costs of the remedial order and its impact on an entity trying to operate within a federal subsidy. Even though VIA declined the opportunity to submit additional evidence, the minority found it was an error of law not to determine a total cost estimate for the remedial order, where cost constraints were at issue. An “undueness” analysis could not be completed without the total cost estimate. Deschamps and Rothstein, J.J. wrote at paragraph 365:
Where the cost is potentially significant and where the Agency adopted a dismissive approach to cost and funding of corrective measures, it is apparent that relevant considerations were not taken into account.
The majority takes a more general approach to “undueness” and finds that, “viewed as a whole” the Agency applied its mandate reasonably and “complied substantially” with British Columbia (Public Service Employee Relations Commission. v. BCGSEU, [1999] 3 S.C.R. 3. The majority was also more concerned about the integrity of the Agency’s proceedings, noting that the onus was on VIA to adduce evidence:
The threshold of “undue hardship” is not mere efficiency. It goes without saying that in weighing the competing interests on a balance sheet, the costs of restructuring or retrofitting are financially calculable, while the benefits of eliminating discrimination tend not to be. What monetary value can be assigned to dignity, to be weighed against the measurable cost of an accessible environment? It will always seem demonstrably cheaper to maintain the status quo and not eliminate a discriminatory barrier.
But the issue is not just cost, it is whether the cost constitutes undue hardship. VIA was required to discharge the burden of establishing that accommodating persons with disabilities was an undue hardship for it: Grismer, at para. 32. Concrete evidence is required to establish undue hardship: Hutchinson v. British Columbia (Ministry of Health) (No. 4) (2004), 49 C.H.R.R. D/348, 2004 BCHRT 58; Grismer, at para. 41. As in most cases, this means presenting evidence in the respondent’s sole possession.
…….
Where VIA refuses to provide evidence in its sole possession in support of its undue hardship argument, it cannot be said that any reasonable basis exists for refusing to eliminate an undue obstacle.
Voluntary Code
The majority deals with the Rail Code relatively briefly, holding that it is a proper factor for the Agency to consider. The Code was intended to set minimum standards and the standard of “personal wheelchair use” was consistent with human rights jurisprudence and with domestic and international acceptance of this standard. The majority describes this as a public commitment at paras. 163-164:
VIA is required to accommodate this right as far as is practicable not only because Canadian law requires it to do so, but because it itself has committed publicly to doing so by agreeing to the Rail Code, a set of standards devised by it and the Agency in consultation with the Canadian Human Rights Commission. And the way VIA had agreed to do so was through access based on personal wheelchair use when it purchased new cars or undertook a major refurbishment of existing cars. The operating paradigm it accepted is the Canadian and internationally accepted norm, not the exception.
The minority views the matter very differently. Far from treating the Rail Code as a commitment which VIA failed to honour, they draw an analogy to Ainsley Financial Corp. v. Ontario Securities Commission (1994), 21 OR (3rd) 104 which held that a policy cannot be elevated to the status of a law and made mandatory. By treating the Code as setting minimum standards, the Agency effectively gave the Code the force of law. Despite the desirability of meeting the Rail Code standards, the Agency could not treat them as legally binding. This would result in failure by the Agency to exercise the discretion vested in it as an adjudicative agency.
Implications
The implication from the majority judgment seems to be that the patently unreasonable standard, now explained as “demonstrably unreasonable”, should apply in most cases, and that the correctness standard should be limited to a very few cases involving strictly jurisdictional issues. Whether this more deferential approach will be applied in future cases remains to be seen. In Lévis (City) v. Fraternité des policiers de Lévis Inc, [2007] S.C.J. No. 14, which issued shortly after VIA, only Abella, J. applied a single deferential standard of review.
Because the effect of a voluntary code is not frequently considered by the Supreme Court of Canada, the 5:4 split on how strictly a code can be applied without breaching Ainsley is unfortunate. There is an increasing use of codes, interpretation bulletins and other policy documents by tribunals. It would have been helpful if a more consistent approach had emerged.
Some of the division may have been due to the Court’s reaction to the lack of co-operation with the Agency’s processes. The majority clearly was concerned by the failure to adduce evidence and the minority judgment concludes with the observation that VIA “must recognize and respect the role of the Agency.”
As a practical matter, the main implication arising from the Court’s treatment of the Code may be to underline the need to present evidence and argument at the first opportunity to justify varying standards set in a code or other policy document.
* Carole Prest, Workplace Safety and Insurance Appeals Tribunal, (416) 314-8848, carole.prest@wst.gov.on.ca. Carole is the Chair of the Administrative Law Section, 2006-2007. The views expressed in this article are the author's, as are any errors or omissions.
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Alternative Dispute Resolution
He Said, She Said
Gary Furlong and Genevieve Chornenki
This article originally appeared in the OBA Alternative Dispute Resolution Section Newsletter, Volume 15, No. 2, March 2007.
ADR these days appears to be just like the universe about three seconds after the Big Bang – expanding rapidly in all directions. While not quite having reached the local corner store as a dispute resolution system for customers unhappy with a 25 cent licorice, it seems it’s heading in that direction. More and more, organizations are setting up dispute resolution systems, arbitrators are taking parties out into the hall to mediate, and boards and agencies are offering different types of alternative dispute resolution to minimize the amount of adjudication that is done. This may, to many, seem laudable, if not downright heavenly. But many others are starting to feel like they felt owning Nortel in late 1999 as the stock hit $125 per share – are we in the middle of a bubble? Are we going too far too fast? Are we putting ADR in places where it doesn’t belong? Are we treating this like a religion that everyone needs to get, rather than a good process that must only be put where appropriate?
As is frequently the case, the editors see this quite differently. Here are their thoughts.
He Said
Gary Furlong*
 ADR is expanding in many different directions, and it is a thing of beauty. The field of ADR has finally begun to pick up momentum, to spread itself through society, and to become part of the culture. ADR is popping up in the most unusual places, and changing the way many people experience the friction points in their lives. And like a father pushing his child on a swing, our job is to keep pushing, and to keep the momentum building.
Over 13 years ago, when I went full time into the dispute resolution field, it existed far on the fringes of society. Mediation was commonly mistaken for “meditation”, and many lawyers reacted with confused silence when asked if they mediated their files. This was a time when mediation and ADR simply didn’t register on the public’s consciousness.
Today, however, all that has changed. Mediation has now gained a foothold in many areas. But before we begin patting ourselves collectively on the back, we should realize that it is really only a foothold, a beginning, a good start, and not much more. We cannot sit back and wait for the phone to ring just yet. In fact, we are at a significant and risky point in the growth of this field, and if we rest on our laurels, we could slip back into obscurity, not because this is simply a fad that has passed but because we didn’t help bring the promise of effective dispute resolution into the very fabric of our culture. We have to continue to spread the ADR message.
There is most definitely the risk that ADR will start to be seen as a flavour of the month and dropped when the hard work is required. And make no mistake, for mediation and ADR to truly become deeply imbedded in society it must expand significantly from where it is today. It therefore makes no sense to pull back, to start tempering the use of ADR or encouraging ADR only in the safe and obvious areas. Quite the opposite, ADR needs to continue to be promoted and attempted in the widest possible way, in the most interesting and unusual circumstances, in situations where it would be least expected. It is only when ADR becomes a normal part of our everyday lives that the true promise of alternative dispute resolution will be realized. It is only when the average employee, embroiled in a dispute with management, immediately starts thinking about and choosing his/her corporate conflict resolution options that we will have succeeded. Or when our kids immediately request a conflict resolution meeting at school to resolve a problem that we will know we’re almost there.
We must be wary of the attitude that tries to keep ADR “in its place” – in other words, keep ADR away from challenging the traditional dispute resolution processes, which most typically resemble rights-based advocacy or power-based authority. As in all great movements of change in our society, new attitudes and new approaches are feared, in the same way that mediation and other interest-based processes are feared by the status quo and the powers that be. Adjudication in court is necessary, but it, quite frankly, is and should be the “alternative”, not mediation. Put simply, we, in the dispute resolution field, are leading the conflict “revolution”, and we shouldn’t stop until the attitudes and practices have changed. Permanently.
So until that time, let’s keep pushing the boundaries. Let’s celebrate peer mediation for our 7 year olds. Let’s cheer for healing circles in corporate boardrooms. And let’s applaud each and every introduction of ADR wherever and whenever it takes place.
* Gary Furlong, Agree Dispute Resolution Inc., (416) 462-9848, gary@agreeinc.com. Gary is the Newsletter Co-Editor of the Alternative Dispute Resolution Section, 2006-2007.
She Said
Genevieve Chornenki*
 It’s tough being cast in the role of a naysayer, but this is a balloon that I feel compelled to pop. The proliferation of mediation may be a thing of beauty from a distance but so is a field of burning tires. Up close, is another story. We owe it to ourselves and to our clients to approach the ADR pandemic with caution.
First, the proliferation of mediation encourages us to take for granted (and disrespect) the process of adjudication which is the backbone of our open, public and accountable system of justice. We see the courts and other statutory decision-makers as inconvenient nuisances when in fact their strength and vitality create the civil society that we enjoy, the climate that permits the luxury of “alternatives.”
Presumptively favouring mediation over public adjudication can also lead to serious injustices, particularly where the public interest is concerned. I once had a consulting mandate for a tribunal with a regulatory mandate whose chair favoured mediation as soon as a file came in. Trouble was, without investigating, the tribunal had no way of knowing whether some form of negotiated outcome was proper, let alone possible. A complaint classified as a “personality conflict” on receipt could easily involve serious competency or safety issues not apparent from the presenting problem.
Second, mediation allows people and organizations to avoid or obfuscate the real problem, especially where money or other resources are concerned – and nothing fuels conflict more than scarce resources.
In downsizings, amalgamations and other situations of scarcity, mediation is a useful deflection technique.
Rather than addressing the core issue (resources) we can recruit mediators to conjure warm and fuzzy feelings with anesthetic qualities. Inside the newly created happy bubbles, distributive problems turn into win-win solutions – provided the people involved tighten their belts.
Third, the results of indiscriminate mediation can be coercive. People get the message – implicitly and explicitly – that it’s wrong to advocate or disagree and that to do so is profoundly counter-cultural with serious consequences. One employee contacted me asking why she had to mediate concerns that her manager was incompetent. She wondered why upper management was more concerned with getting rid of her complaint than investigating the problem, but she was afraid to say no to mediation for fear of reprisal.
Fourth, the quality of some of these programs is atrocious. Last year, I sat in as an observer for a community-based mediation project, a program that had received endorsement and acclaim from people I admire and respect. What I saw in practice, however, was heartbreaking. Mediators belittling people, coercing them, threatening them.
And fifth, indiscriminate mediation does not produce meaningful behavioural or attitudinal change. A colleague works at a tribunal with a decades-old ADR initiative and many repeat players. One of her recent mediations went something like this:
“He didn’t give me that document.”
“I did so.”
“Did not.”
“Did too.”
“Did not.”
“Did too.”
The mediator’s intervention consisted of shutting people up and then brokering a schedule for the transmission (or re-transmission) of the document in question. The response of the parties? “Gee, thanks. This was a really useful meeting.”
Now before Barry Fisher and other business-types jump all over me, let me concede that there’s money to be made in ADR systems design, as well as in mediating what flows from the pipe. I, like others, have made respectable money as a service provider to ADR programs. That, however, doesn’t cancel out the need to be thoughtful, even critical of mediation here, there and everywhere.
The goal of these programs is laudable. Many seek to foster better decision-making and to support people in taking responsibility for themselves. Here, here! We (and I include myself) have a lot to learn about quality conversations. Our discourse could be seriously improved from Parliament right down to the dining room table. But gluing mediation on to established undertakings isn’t the way to go. One size doesn’t fit all and some people don’t wear pantyhose. Besides, as long time mediation advocate Peter Bruer put it, “There’s a lot going on in this world that mediation isn’t going to fix.”
* Genevieve Chornenki was inaugural Chair of the ADR Section of the OBA. She has practised ADR since 1989, (416) 975-9898, gac@chornenki.com. Genevieve is the Newsletter Co-Editor of the Alternative Dispute Resolution Section, 2006-2007.
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Business Law
The Ontario Corporations Act - Business Law Modernization Phase 3
Chris Moon*
 This article originally appeared in Business Beat, the OBA Business Law Section Newsletter, Volume 17, No. 3, May 2007.
Ontario’s Corporations Act is the target of the third and final phase of the Ontario Government’s Business Law Modernization Project. The Act, which governs not-for-profit or non-share corporations, is widely regarded as outdated and will be the subject of considerable work over the next year or two to bring forward a modern act.
The Business Law Modernization Project itself has been ongoing for almost two years, having been first announced by the Honourable Jim Watson, Minister of Consumer and Business Services (now Ministry of Government Services), at an OBA program held on May 16, 2005. Phase 1 resulted in the passage of the Securities Transfer Act, 2006, which came into force on January 1, 2007. The Business Law Section played a central role in promoting this legislation, which gives legal recognition to the ownership, transfer and pledge of interests in securities in both the direct and indirect holding systems.
The Business Corporations Act and the Personal Property Security Act were the focus of phase 2 of the Project. Some 64 amendments to these two statutes and related statutes have been enacted as part of the Consumer Protection and Service Modernization Act, 2006 (Bill 152) which will come into force on August 1, 2007. The Corporate Law and Personal Property Security Law Subcommittees, chaired respectively by Wayne Gray and John Cameron, had significant input into the legislation.
Our current Corporations Act was first enacted 100 years ago and was last updated more than 50 years
ago. The not-for-profit sector has been recognized by the government as significant in the economy and in need of a modern statute. There are more than 50,500 not-for-profit corporations governed by the current Corporations Act. It is estimated that Canada’s GDP from the not-for-profit sector is over $80 billion and it employs more than 2 million full-time workers and 11 million volunteers. The objectives of the phase 3 of the Project are to respond to the 21st century realities for this sector, as well as strengthen protection for not-for-profit members, directors and the public and to enhance governance.
Phase 3, Corporations Act reform, is now underway. A presentation was done by the Ministry to the OBA on March 14, 2007, and is being followed by consultations throughout the process. The next major stage of the process will be the issuance of consultation white papers on a series of topics by the Government, followed by consultation with major stakeholder groups, including the OBA.
The Business Law Section is holding or sponsoring various education programs on these changes over the next several months. A key event was the joint OBA/Law Society Business Law Modernization half-day program held on June 5th. The Honourable Gerry Phillips, current Minister of Government Services, was the keynote speaker at this event. Allen Doppelt, Senior Legal Counsel of the ministry spoke to reform of the Corporations Act.
* Chris Moon, Davis Webb LLP, Brampton, (905) 451-6714, Chris.Moon@DavisWebb.com. Chris Moon is a Member-At-Large of the Business Law Section, 2006-2007.
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Citizenship and Immigration
Privacy at Risk: Can Your Laptop be Searched at the Border?
Sergio R. Karas*
Lawyers throughout North America are trying to come to grips with the fallout of a decision by the Ninth Circuit Court of Appeals of the United States. The opinion of the Court, which held that computer devices and the data they contain can be thoroughly examined at the border, opened the floodgates to more thorough border crossing searches. However, even as the ink on that decision was beginning to dry, another opinion released by a court in the Central District of California, in the same Ninth Circuit, reached the opposite conclusion, adding to the confusion of an otherwise settled doctrine of border searches of persons and their goods.
The Doctrine of Border Searches
The question of whether or not a border search can be fairly intrusive was settled by the United States Supreme Court in U.S. v. Flores-Montano,1 a recent case where the Court held that a thorough border search of a vehicle did not require reasonable suspicion, and that the government’s interests in preventing the entry of unwanted persons and effects is at its zenith at an international border.
In that case, at the international border in Southern California, Customs officials seized 37 kg of marijuana from Flores-Montano’s vehicle by removing and disassembling the gas tank. Flores-Montano was indicted on federal drug charges, but he tried to suppress the evidence, arguing that such an intrusive search required reasonable suspicion, because it engaged the protection of the Fourth Amendment of the United States Constitution against unreasonable search and seizure.
The Supreme Court disagreed and held that the search did not require reasonable suspicion. The Court affirmed the principle that a border search of goods was considered “routine” and not “intrusive”, and that a balancing act to determine whether a search of a vehicle was so intrusive as to necessitate a warrant or probable cause, was not required. The Court also held that Congress has always granted the Executive plenary authority to conduct routine searches and seizures at the border, without probable cause or a warrant, in order to regulate the collection of duties and to prevent the introduction of contraband into the United States.
The Court rejected the argument that Flores-Montano had a privacy interest in his fuel tank, and that the disassembly of the tank was an invasion of his privacy. The Court noted that the privacy expectation is less at the border than it is in the interior of the country, and persons crossing a border can reasonably expect to be subjected to searches. While the protection of the Fourth Amendment extends to property as well as privacy, the interference with a motorist’s possessary interest in his gas tank was justified by the government’s paramount interest in protecting the border. Thus, the government’s authority to conduct suspicionless inspections at the border includes the authority to remove, disassemble and reassemble a vehicle fuel tank.
With its opinion in Flores-Montano, the Court followed a long line of cases that have interpreted the government’s power to conduct border searches in a very expansive manner.
Computer and Data Searches Create New Problems
Shortly after the Supreme Court decision in U.S. v. Flores-Montano,2 the United States Court of Appeals for the Fourth Circuit was confronted with the novel question of computer and data searches. In U.S. v. Ickes,3 the Court rejected a defendant’s argument that the search of his computer at the border was invalid because it involved “expressive material”.
In that case, Ickes was attempting to enter the United States from Canada when U.S. Customs agents searched his van. The agents found several illegal items, most notably images of child pornography stored in photo albums and on Ickes’s computer. Ickes was charged and convicted of transporting child pornography in violation of federal law. Prior to trial, the district court denied Ickes’s motion to suppress the evidence obtained at the border. The Court of Appeals for the Fourth Circuit affirmed the decision that a warrantless search of Ickes’ van was permissible, and held that both Congress and the Supreme Court had made it clear that extensive searches at the border are permitted, even if the same search elsewhere would not be.
The Court refused to undermine the doctrine of border searches by restrictively reading the language of the statute, or by carving out a First Amendment exception. Ickes claimed that the statutory language authorizing U.S. Customs officials was insufficient to cover the search of his computer and disks. The statutory language in 19 U.S.C. § 1581(a) (2000) prescribes that:
Any officer of the customs may at any time go on board of any vessel or vehicle at any place in the United States or within the customs waters, . . . or at any other authorized place . . . and examine the manifest and other documents and papers and examine, inspect, and search the vessel or vehicle and every part thereof and any person, trunk, package, or cargo on board. . . .
Ickes argued that, since the statute did not specifically mention electronic equipment, the search was illegal and required a warrant. The Court disagreed, and held that, despite Ickes' contention to the contrary, the plain language of the statute authorizes expansive border searches. The Court was not persuaded that the transportation of a laptop computer was somehow exempt from the ordinary definition of “cargo” in the statute, and opined that to hold otherwise would undermine the long-standing practice of seizing goods at the border even when the type of good is not specified in the statute. The Court followed the language in U.S. v. Flores-Montano4 and held that the government’s authority to conduct border searches is broad enough to cover the search of computers and disks.
As a last ditch effort, Ickes argued that the search of his computer was invalid because it involved “expressive material” protected by the First Amendment. In essence, Ickes asked the Court to carve out an exception to the border search doctrine based on the nature of the material. The Court rejected this contention and held:
“…the ramifications of accepting Ickes’ First Amendment argument would be quite staggering. Ickes suggests that the border search doctrine does not apply when the item being searched is something “expressive.” But this cannot be the case. The border search doctrine is justified by the longstanding right of the sovereign to protect itself. Flores-Montano, 124 S. Ct. at 1585, quoting Ramsey, 431 U.S. at 616. Particularly in today’s world, national security interest may require uncovering terrorist communications, which are inherently “expressive”. Following Ickes’ logic would create a sanctuary at the border for all expressive material – even for terrorist plans. This would undermine the compelling reasons that lie at the very heart of the border search doctrine. Ickes’s argument, at bottom, proves too much.” (emphasis added)
In rejecting Ickes’ request for protection of computers and data, the Court further held:
“Ickes claims that our ruling is sweeping. He warns that “any person carrying a laptop computer . . . on an international flight would be subject to a search of the files on the computer hard drive.” This prediction seems far-fetched. Customs agents have neither the time nor the resources to search the contents of every computer.”
The Court held that the search of computers and disks was legal, and refused to carve out a First Amendment protection which would have required a difficult balancing test to determine what material is “expressive” as opposed to illegal contraband.
Courts Expand the Scope of Computer and Data Searches
In U.S. v. Romm5 the Ninth Circuit Court of Appeals was confronted with a difficult case, which involved the search of data contained in a laptop held by an individual who attempted to enter Canada but was returned to the United States as an inadmissible person due to a previous criminal conviction.
The Court was called upon to decide whether, absent a search warrant or probable cause, the contents of a laptop computer may be searched at an international border. In that case, the search conducted by Customs officials was much more thorough and intrusive, and involved the use of external tools and software.
The defendant, Stuart Romm, connected to the internet from a Las Vegas hotel room and visited websites containing images of child pornography. As he viewed the images online and enlarged them on his screen, his computer automatically saved copies of the images to his “internet cache”. Based on forty images deleted from his internet cache and two images deleted from another part of his hard drive, he was convicted of knowingly receiving and knowingly possessing child pornography, in violation of U.S. law.
Romm had attended a training seminar held by his new employer in Las Vegas, Nevada. When the training seminar ended, he flew from Las Vegas to Kelowna, B.C., on business. However, at the airport in B.C., Canada’s Border Services Agency (CBSA) discovered that Romm had a criminal history and directed him for further questioning. At that time, Romm admitted that he had a criminal record and was currently on probation. The CBSA agent asked Romm to turn on his laptop and briefly examined it, when several child pornography websites appeared in the laptop “internet history”. The CBSA agent asked Romm if he had violated the terms of his probation by visiting those websites, and Romm answered in the affirmative. Romm was placed under detention until he could take the next flight to Seattle, WA. However, at the same time, CBSA agents informed U.S. Customs in Seattle that Romm had been denied entry and probably had illegal images on his computer, a violation of his probation order. Upon arrival at the Seattle-Tacoma Airport, Romm was interviewed by agents from the Immigration and Customs Enforcement (ICE). The agents arranged for a preliminary forensic analysis of the laptop hard drive by an expert using complex software tools, which revealed ten images of child pornography stored in the computer. When confronted with the evidence, Romm admitted that he had downloaded the images and breeched the terms of his probation. The officers conducted the investigation as a “border search” and never obtained a warrant to examine the data contained in the laptop.
At trial, the U.S. government called three witnesses to testify about the forensic analysis of the hard drive in Romm’s laptop, who described the use of different types of software to recover deleted files. The government also let evidence to show when the images were downloaded, viewed and deleted. Before trial, Romm’s defense counsel moved to suppress the evidence obtained through the border search of his laptop. However, the Court denied that motion. Romm was convicted of possession of child pornography and appealed the convictions.
The most important issue arising out of the facts of this case was the legality of the laptop search. The Ninth Circuit Court of Appeals held that the forensic analysis of Romm’s laptop fell under the “border search” exception to the requirement to obtain a warrant. Under this exception, the government may conduct searches of persons entering the United States without probable cause, reasonable suspicion or a warrant, as previously held in Untied States v. Montoya De Hernandez.6 The Court also affirmed that, for the purposes of the Fourth Amendment, an international airport terminal is the “functional equivalent” of a border. Thus, passengers deplaning from an international flight are subject to routine border searches. The Court rejected Romm’s contention that the search was illegal and required a warrant because he never legally crossed the U.S.-Canada border, as he had been denied entry to Canada. The Court held that there is no authority for the proposition that a person who fails to obtain legal entry at his destination may freely reenter the United States: to the contrary, he or she may be searched just like any other person crossing the border. The Court further held that the border search doctrine is not limited to those cases where the searching officers have reason to suspect that the entrant may be carrying foreign contraband. Instead, “searches made at the border are reasonable simply by virtue of the fact that they occur at the border”, as the court previously held in United States v. Flores-Montano,7 quoting United States v. Ramsey.8 Thus, the Court held that the routine border search of Romm’s laptop was reasonable and a warrant was not necessary.
Private and Personal Information in a Laptop Protected?
In a recent ruling released on October 2, 2006, in the Ninth Circuit, the Central District of California appears to have taken a different position from that of the Court of Appeals in U.S. v. Romm,9 attempting to draw a distinction between “personal” and “business” electronic data. In U.S. v. Arnold,10 that Court held that Customs agents do not have free reign to search files on a laptop computer which may include trade secrets, attorney-client privileged information, and other proprietary business information.
In that case, Michael Arnold arrived at Los Angeles International Airport (“LAX”), following a long flight from the Philippines. Customs and Border Patrol Officers at LAX searched Arnold’s laptop, hard drive, compact discs, and memory stick. Following the search, Arnold was indicted for transportation of child pornography and possession of a computer hard drive and CDs containing images of child pornography. In response to Arnold’s motion to suppress the evidence, the government argued that a border search of information stored in a computer hard drive is not subject to Fourth Amendment protection. Surprisingly, the Court rejected the government’s argument, noting that the issue was “ripe for determination because technological advances permit individuals and businesses to store vast amounts of private, personal and valuable information within a myriad of portable electronic storage devices including laptop computers, personal organizers, CDs, and cellular telephones.”
The Court compared a search of the private information stored on a computer with a strip or body cavity search, recognizing that electronic storage devices were an “extension” of the person, unique in its storage capabilities. The Court held:
“[w]hile not physically intrusive as in the case of a strip or body cavity search, the search of one’s private and valuable personal information storage device can be just as much, if not more of an intrusion into the dignity and privacy interests of a person. This is because electronic storage devices function as an extension of our own memory. They are capable of storing our thoughts, ranging from the most whimsical to the most profound. Therefore, government instructions into the mind – specifically those that would cause fear or apprehension in a reasonable person – are no less deserving of Fourth Amendment scrutiny than intrusions that are physical in nature.”
The Court concluded that such a border search must be based, at a minimum, on a reasonable suspicion. The Court also held that, in that case, the search was not caused by a reasonable suspicion that the confidential information stored in the defendant’s computer contained evidence of a crime.
The position of the Court in U.S. v. Arnold11 seems to be at odds with the expansive interpretation given to border searches by the Ninth Circuit Court of Appeals, in U.S. v. Romm12 and by the Supreme Court in U.S. v. Flores-Montano.13
Conclusion:
The decision of the Ninth Circuit Court of Appeals in U.S. v. Romm,14 has sent shockwaves through the legal profession in the United States and Canada, and has raised serious concerns about the limits of border searches conducted without warrants. Interestingly enough, the Ninth Circuit Court of Appeals, based in San Francisco, is generally known for its liberal views, so this decision comes as somewhat of a surprise to legal observers. While Romm deserves no sympathy for his actions, the decision may result in very thorough searches of electronic data at U.S. borders and airports. The decision appears to follow the expansive interpretation given to border searches by the Supreme Court and by the Court of Appeals for the Fourth Circuit. The recent decision of the California Central District in U.S. v. Arnold,15 appears to be somewhat far-fetched and at odds with well-established jurisprudence.
Practitioners must be careful and advise clients concerning the risks involved in international travel, and now, they must add the prospect that the data contained in laptops and electronic devices can be searched without a warrant at a U.S. port of entry.
* Sergio R. Karas, Karas & Associates, (416) 506-1800, karas@karas.ca. Sergio is the Vice-Chair of the Citizenship and Immigration Section, 2006-2007. His comments and opinions are personal and do not necessarily reflect the position of any organization.
1 541 U.S. 149 (2004)
2 Supra
3 393 F. 3d 501(4th Cir. 2005)
4 Supra
5 455 F.3d 990 (9th Cir. July 24, 2006)
6 473 U.S. 531,538, [1985]
7 541 U.S., 149, 152-53 [2004]
8 431 U.S., 606, 616 [1977]
9 Supra
10 F. Supp. 2d --, 2006 WL 2861592 (C.D. Cal. Oct. 2, 2006)
11 Supra
12 Supra
13 Supra
14 Supra
15 Supra
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Civil Litigation
Bias and Apprehension of Bias Update
Barbara A. McIsaac, Q.C. and Anthony Moffatt*
 This article originally appeared in the OBA Civil Litigation Section Newsletter, Volume 15, No. 2, January 2007.
It has long been recognized that guarding the objectivity of decision-makers is critical to maintaining not only the integrity of the judicial system but democracy itself. Socrates, who arguably died for the democratic ideal, counselled judges to hear courteously, answer wisely, consider soberly, and decide impartially; Aristotle, who enjoyed the fruits of the West’s first democracy, observed that those “who bid man rule adds an element of the beast, for desire is a wild beast, and passion perverts the minds of rulers, even when they are the best of men. The law is reason unaffected by desire.”1 This idea of the law lives on today. It is  no coincidence, for example, that law students pore over pages of judgments to find the “ratio” of a case – a word which comes from the Latin word for “reasoning”2 – or that a modern legal scholar, L.L. Fuller, believes that the reasonable, neutral decision-maker is pivotal in the adjudicative process insofar as he or she “confers on the [disputing parties] a peculiar form of participation in the decision, that of presenting proofs and reasoned argument for a decision in their favour.”3 In fact, this historical ideal of objectivity in the law was, until very recently, considered absolute in the common law community and, to some, even sacred. The law is not made by judges, so the argument of the legal formalist ran, but rather discovered by them.
In the 1960’s, however, an attack on the façade of pure objectivity began in earnest. Behaviouralist scholars4 of the twentieth century refused to believe in this “mechanistic model of judging embraced by the legal formalist which viewed judges as value-free technicians who do no more than discover the law.”5 The early behaviouralists preferred to think of judges as people who, first and foremost, made decisions based on subjective policy preferences. Harold J. Spaeth, for example, compiled a large database based on personal voting preferences of US Supreme Court Justices, and, from 1970 to 1980, would write a column called “The Supreme Court Computer” in the New York Times in which he accurately predicted the outcome of court cases without recourse to legal reasoning.6
At best, the legal community’s response to the realist proposition was rational;7 at worst, it bordered on the barbaric. In the 1960’s, for example, an academic panel transformed into a veritable “lynch mob” at the suggestion that US Supreme Court Judges were in any way political.8 While enduring such an environment, one leading political scientist of the behavioural school would write that law professors were “the psychopaths” of the academic world who “lived in a fairyland where they alone [had] access to and understanding of the oracular pronouncements emanating from the holy of holies…”9
Today, however, the Canadian legal community has conceded that judges do more than merely discover the law. “We do not believe in fairy tales any more,” pronounced Bora Laskin.10 We now know that there is not a clear legal answer to every legal question and that the law often limits decision-makers rather than rule them. We admit, in other words, that biases of all kinds can sway our decision-makers but their judgments nevertheless can, and sometimes do, pass legal muster. The late Chief Justice Laskin perhaps recognized this when responding to a charge that judges “lean” in federalism cases. “Do we lean?” he responded, tongue-in-cheek. “Of course we do, in the direction in which the commands of the constitution take us, according to our own individual understandings.”11 Justice Martland also conceded that bias influences judges, and said that, despite having sometimes developed over fifty years of idiosyncratic traits and values, judges “should and do try to overcome their own biases and loyalties when making a judgment.”12 In the end, he believed that “history will testify that… judicial restraint – the refusal to substitute will for judgment – is precisely the quality that most distinguishes a judge from a great judge.”13
And yet while we now freely admit bias can affect our decision-makers, our evolving jurisprudence on administrative fairness attests to the growing concern that it be constrained.14 The test for discerning bias in Canadian jurisprudence is the formulation articulated in Committee for Justice & Liberty v. Canada (National Energy Board)15 per de Grandpré J. dissenting:
[T]he apprehension of bias must be a reasonable one, held by reasonable and right-minded persons, applying themselves to the question and obtaining thereon the required information. In the words of the Court of Appeal, that test is ‘what would an informed person, viewing the matter realistically and practically – and having thought the matter through – conclude.16
This is the general test for discerning bias - and is now considered trite law - but de Grandpré J. alludes to the real problem when he asserts that the reasonable person must think the matter through “realistically and practically.” The legal community has admitted that bias can go undetected within the rigours of the law, but, when approaching the question of whether there is a reasonable apprehension of bias in a proceeding, an “objective and properly informed third party” can only truly be so when he examines the context of each circumstance. As L’Heureux Dube J. noted in Baker v. Canada (Minister of Citizenship and Immigration),17 “the concept of procedural fairness is eminently variable and its content is to be decided in the specific context of each case… [a]ll of the circumstances must be considered in order to determine the content of the duty of procedural fairness.”18 As a result, courts can apply the same law to fairly similar fact patterns and produce wide-ranging results.
With this in mind, we have summarized and commented on several recent cases on bias and apprehension of bias of judicial bodies, noting the similarities and differences between the cases throughout.
Wewaykum Indian Band v. Canada; Mugesera v. Canada
Two recent cases in the Supreme Court of Canada have involved alleged apprehension of bias.
The first, Wewaykum Indian Band v. Canada,19 occurred in 2003. This case dealt with a long-simmering discord between two sister bands, the Campbell River and Cape Mudge bands, of the Laich-kwil-tach First Nation. Both bands had claimed exclusive entitlement to two reserves, and, in 1985, Campbell River started an action against Cape Mudge and the Crown in Federal Court. Cape Mudge counterclaimed against Campbell River, and brought its own claim against the Crown; the cases were joined, then dismissed; appeals to the Federal Court of Appeal were made and subsequently dismissed by unanimous judgment. The bands were granted leave to appeal to the Supreme Court of Canada and were heard by the full Court on December 6, 2001, at which point the Court, in a unanimous decision written by Binnie J., dismissed the appeal.
Binnie J.’s reasons, however, did not sit well with the bands. Counsel for the Campbell River band stated that the bands did not appreciate the “tenor” of the judgment and were left feeling as though their arguments had not been properly addressed.20 As a result, the band made a request for information under the Access to Information Act and subsequently discovered that Binnie J. had some involvement in the case in the years 1985 to 1986 while acting as Associate Deputy Minister at the Department of Justice. Several internal memos from the Department of Justice that discussed issues raised by the Campbell River claim were addressed to Binnie J., and, in addition, it became clear through the released documents that Binnie J. had even discussed their situation at some length with others in the Department of Justice (albeit before Campbell River had submitted its statement of claim). Another memo indicated that Binnie J. had confirmed that Bill Scarth, another lawyer at the Department, was in charge of the file. Both Campbell River and Cape Mudge filed motions to have the unanimous decision of the Court set aside on the basis of a reasonable apprehension of bias.
The bands’ submissions were very similar. While Cape Mudge believed that Binnie J. did not remember the Campbell claim by the time he heard the case on the bench, the Cape Mudge band nevertheless submitted that his tenure at the Department of Justice raised “legitimate questions as to whether the positions he formulated and recommended and the various memoranda and documents he read would have had an influence on his approach to the same case as a judge.”21 The Campbell River band similarly alleged that some “contaminating knowledge,” albeit
“unconsciously,” would have remained with Binnie J. since his tenure as Associate Deputy Minister in the mid-eighties.22 Both bands also claimed that a reasonable apprehension of bias existed: Campbell River alleged, for example, that the “subjective evidence of a judge’s state of mind, and thus Binnie J.’s absence of recollection, [was] legally irrelevant to a determination of whether there is a reasonable apprehension of bias.”23 Finally, each band argued that since Binnie J. would have recused himself had the Department of Justice documents been revealed before the hearing, a reasonable apprehension of bias existed at the time of trial.24
In its analysis, the court noted that there is no Canadian jurisprudence to support the “automatic disqualification” of a decision-maker who was in some way involved in the litigation at an early stage, let alone before a statement of claim was issued.25 The court emphasized, moreover, that the bar for a party seeking to prove the apprehension of bias is high. Each case must be scrutinized on its facts and, more importantly, the test to be applied to these facts “rests on serious grounds, in light of the strong presumption of judicial impartiality.”26 The court saw fit to reiterate de Grandpré J.’s important addition to the reasonable apprehension standard cited supra:
The ground for this apprehension must, however, be substantial, and I … refus[e] to accept the suggestion that the test be related to the “very sensitive or scrupulous conscience.”27
With this in mind, the court went on to state that this high standard applies regardless of when the issue of disqualification is brought up. “The fact that a judge would have recused himself or herself ex ante cannot be taken to be determinative of a reasonable apprehension of bias ex post.”28 In other words, a small degree of involvement in a case is grounds for a reasonable apprehension of bias and voluntary recusal before the issue of disqualification, but not conclusive evidence of apprehension of bias after the fact.
The court determined that the case turned on two points. First, the germane issue was the nature and extent of Binnie J.’s involvement in the case while he was Associate Deputy Minister. On this point, it is worth noting the court’s observations at some length:
Admittedly, Binnie J.’s link to this litigation exceeded pro forma management of the files. On the other hand, it should be noted that he was never counsel of record, and played no active role in the dispute once the claim was filed… The facts do not support the proposition that Binnie J. planned litigation strategy for this case, as is suggested by the bands… Furthermore… Memos 8, 9 and 10… establish that any views attributed to Binnie J. earlier on were offered in the context of wider implications of the negotiation process, and not in the context of litigation.29
The court also pointed out that any reasonable person gauging the potential for bias arising from Binnie J.’s activities would also have to take the realities of legal practice within the Department of Justice into consideration. Unlike a lawyer in private practice, Binnie J. had “responsibility for thousands of files at the relevant time.”30 As such, the advice he gave in the Campbell River file did not pertain to an issue unique to the instant case, but rather an issue which had a much wider application to many contemporaneous claims. Indeed, “[t]his was presumably the reason,” the court noted, “why he was approached in the first place.”31
The second major factor that the court examined was the length of time that had passed between Binnie J.’s involvement in the case as an Associate Deputy Minister and a Supreme Court Justice. The court cited Locabail (U.K.) Ltd. v. Bayfield Properties Ltd.32 with approval:
… every application must be decided on the facts and circumstances of the individual case. The greater the passage of time between the event relied on as showing a danger of bias and the case in which the objection is raised, the weaker (other things being equal) the objection will be.33
In the end, the court held that a reasonable person, viewing the matter realistically, would not believe that Binnie J.’s involvement with the case as an Associate Deputy Minister imbued him with any kind of bias, conscious or otherwise. The court concluded by outlining the decision making process of the Supreme Court of Canada and noting, in particular, that each Justice prepares for each hearing independently. The resulting reasons are thus “the fruit of a truly collegial process of revision of successive drafts” and express “the individual views of each and every judge who signs them, and the collective effort and opinion of them all.”34 As such, the court held that:
…[e]ven if it were found that the involvement of a single judge gave rise to a reasonable apprehension of bias, no reasonable person informed of the decision-making process of the Court, and viewing it realistically, could conclude that it was likely that the eight other judges were biased, or somehow tainted, by the apprehended bias affecting the ninth judge.35
The concluding remarks of Wewaykum would prove prescient. Only one year later, the court heard a motion for a permanent stay of proceedings in the case of Mugesera v. Canada (Minister of Citizenship and Immigration)36 in which the War Crimes Committee, an organization which Abella J.’s husband chaired, was an intervenor. Despite the voluntary recusal of Abella J., the respondent Mugesera alleged that her mere presence on the court impaired the ability of its members to remain impartial.
The court, after observing that the motion was “flagrantly without basis in fact or in law,”37 quickly dispatched the respondent’s claim for alleged bias by stating that “no reasonable person would think, after Abella J. voluntarily recused herself, that her mere presence on the court would impair the ability of the balance of its members to remain impartial.”38
What is notable about this case, however, is not the substance but the tone of the court’s reasons. It quickly becomes clear from the judgment’s severe – and, at times, even scolding - language that the court in Mugesera was vigorously defending the famous dictum that “justice must not only be done, but should manifestly and undoubtedly be seen to be done.”39 There is a reason, after all, that there is a strong presumption of impartiality in the test articulated by Grandpré J.: entertaining groundless allegations of bias will, over time, undermine the public’s view of the court’s ability to make impartial decisions.
In Wewaykum it was noted that the submissions of the parties were such that the “personal integrity” of Binnie J. was “not in doubt.”40 In Mugesera, however, the court took exception to, inter alia, the “astounding proposition” of the respondents that the entire court, because of Abella J.’s connection to an intervener, had a duty to recuse itself. “To reach this conclusion,” the court noted, “would be to ascribe a singular fragility to the impartiality that a judge must necessarily show, and to the ability of judges to discharge the duties associated with impartiality in accordance with the traditions of our jurisprudence.”41 The court went on to state that the motion was “unprofessional and unacceptable” and “constitute[d] an unqualified and abusive attack on the integrity of the Judges of this Court.”42
SOS – Save our St. Clair Inc. v. Toronto (City)43
The case of Save our St. Clair was heard two years after Wewaykum and a month before Mugesera, and is interesting for several reasons.
Save Our St. Clair was an organization incorporated in order to oppose the building of a dedicated Streetcar Right of Way on St. Clair Avenue West in Toronto. The public had participated throughout the process and planning stage of the project and study results had been reported to a city planning committee. After much debate, the City of Toronto (“the City”) decided to go ahead with the project. Save Our St. Clair subsequently made submissions to the ministry for an order requiring an environmental assessment, but their request was dismissed. Soon thereafter, the group made an application for a judicial review of the city’s decision to continue the project, and the application was unanimously endorsed by three judges, including Justice Matlow, of the Ontario Superior Court of Justice with reasons to follow.
Subsequently, however, the City learned details – or perhaps, more fairly, learned more details - about Justice Matlow’s zealous and very publicized opposition to another city project called the “Thelma Project” as well as his association with a committee of his neighbors called “the Friends” who shared his beliefs on the issue. Before the reasons in Save our St. Clair were released, the City made a motion seeking an order that the chair of the judicial panel, Justice Matlow, recuse himself because of an apprehension of bias, the panel be struck, and the original application for judicial review which was unanimously endorsed by the court be set aside and heard de novo. Although Justice Matlow refused to recuse himself, the remainder of the court nevertheless struck the panel and ordered the application to be heard de novo because they “consciensciously believe[d]” that there was a perception of bias.44
Justice Matlow, in dissent, would have dismissed the motion for several reasons, although he states that the City’s delay in raising the issue of bias early enough in the proceedings was itself sufficient. He found that the City had “been in possession of all of the pertinent facts” relating to the alleged apprehension of bias, and had, by the end of the first day of the hearing, “considered the implications of those facts.”45 Nevertheless, the hearing continued the next day with no objections from the city, “nor,” he states, “did counsel for the City of the TTC display any urgency or concern when, at the conclusion of [the hearing], they expressed the wish that we release our judgment if possible, prior to October 12, 2005…”46 Indeed, it was only days after receiving the adverse judgment, Justice Matlow concluded, that the moving parties showed any real interest in bringing a motion seeking a new panel.
Justice Matlow then cites E.C.W.U. Local 916 v. Atomic Energy of Canada Ltd.47 for the proposition that waiver can be implied from the parties’ failure to allege a violation at the earliest practicable opportunity, and, as such, it is not necessary to expressly waive the right to object on the grounds of bias. He also cites the Federal Court of Appeal case of Eckervogt v. British Columbia,48 noting that a party must not remain silent and rely on an allegation of apprehension of bias only when the outcome “turns out badly:”
I do not think it is proper for a party to hold in reserve a ground of disqualification for use only if the outcome turns out badly. Bias allegations have serious implications for the reputation of the tribunal and in fairness they should be made directly and promptly, not held back as a tactic in litigation. Such a tactic should, I think, carry the risk of finding a waiver. Furthermore, the genuineness of the apprehension becomes suspect when it is not acted on right away.49
However, this case law does not seem to completely square with the facts before the panel. In Atomic Energy and Eckervogt, it was clear that both parties had full knowledge of the nature of the allegation of bias. Indeed, in Atomic Energy, Marceau J. observes that “[t]here is no waiver or acquiescence unless the party entitled to object to an adjudicator’s participation was made fully aware of the nature of the disqualification and had an adequate opportunity of objecting.”50 Marceau J. goes on to quote Cartwright J. in Ghirardosi v. Minister of Highways for British Columbia:51
There is no doubt that, generally speaking, an award will not be set aside if the circumstances alleged to disqualify an arbitrator were known to both parties before the arbitration commenced and they proceeded without objection.52
Yet in the instant case, despite finding that the City had “all the relevant facts” and had “considered all of the implications arising from those facts,”53 he observes at paragraph 29 that the “inquiry” into his activities “began in earnest” only after October 11, 2006.54 It is thus interesting to note that, at the end of the day, Justice Matlow seems to dismiss the motion on the basis that the City, even though they may have had an incomplete picture of the situation, should have alerted the court that they were concerned about “something” and request an adjournment:
If the City wished to have more time to investigate the facts before deciding what to do, it was open to counsel for the moving parties to appear before the panel when the hearing resumed on the following day, October 7, 2005, to request an adjournment for a few days. At that stage it would not have been necessary for counsel to tell us what the City’s concern was. It would have been quite enough had counsel, as an officer of the Court, told us that something had come to the City’s attention that could affect the regularity of the hearing then in progress and that the City needed more time to look into whatever it was. In those circumstances, the hearing of the judicial review application would almost certainly have been adjourned and the issue of my participation could have been clarified a few days later before further arguments on the merits were to be made.55
Justice Matlow then begins to address why he has found that there was no apprehension of bias involved in the instant case. He reminds the parties of the judicial oath he took upon his becoming a judge, his record of impartiality in cases involving the City, and insists that he would never allow his “personal feelings about the Thelma project interfere with [his] judging cases in which the City [was] a party.”56 While reviewing the law on apprehension of bias, he observes that the threshold “for a finding of real or perceived bias is high” and notes that “an allegation of apprehension of bias calls into question not simply the personal integrity of the judge, but the integrity of the entire administration of justice.”57 He goes on to note, moreover, that
“[b]ecause the tendency of disgruntled litigants to raise ‘angry objection’ in their attempt to win at any cost, judges have been cautioned against … accepting that they should remove themselves, particularly after a hearing or trial has begun.”58
Justice Matlow goes on to deny many of the City’s allegations and corrects facts put forth by the City which he considers to be erroneous. For example, he denies that the “Friends” were ever any kind of association; he observes that he never acted as “counsel” for the group, but rather represented himself while the Friends simply participated without official status; and he points out that the letter that he wrote to the Mayor was not on his official judicial letterhead, but rather had headings and footers created by his computer which provided his name, address, and phone number. Justice Matlow also confirms that he granted many interviews to the press, and describes several instances of his public objections to the City’s plans. He even acknowledges sending documents to a Globe and Mail reporter regarding the Thelma project a day before the St. Clair case was heard.
One of the only allegations Justice Matlow neither denies nor deflects is the allegation that he spoke to politicians and “willingly responded to invitations from the news media for comments which I willingly gave.” Indeed, he gives no apologies for this wide-ranging activism, and instead insists that he “was entitled to argue with governments at all levels about things that affected [him] directly…”59 and cites an opinion about municipal democracy that was circulated to federal judges in 1999 by an advisory committee of the Canadian Judicial Council:
As a ratepayer and citizen the judge is entitled to have and express views on a purely local and municipal question provided, of course, that the judge realizes that in doing the judge must be disqualified from any participation in any litigation arising from the matter.60
Yet even if there were an apprehension of bias, Justice Matlow observes, the decision should stand since the decision was unanimous and his recusal would have led to the same result. He cites the observation of the court in Wewaykum regarding the independent, collegial nature of the decision-making process in the judiciary:
In the circumstances of the present case, even if it were found that the involvement of a single judge gave rise to a reasonable apprehension of bias, no reasonable person informed of the decision-making process of the Court, and viewing it realistically, could conclude that it was likely that the eight other judges were biased, or somehow tainted, by the apprehended bias affecting the ninth judge.61
Justice Matlow concludes his argument by emphasizing that the threshold for a finding of real or perceived bias is high and the result of his colleagues’ decision to strike the panel will result in “draconian consequences for a blameless party.”62 He also adds that his colleagues “had no superior or appellate function to perform,” and, as such, did not have jurisdiction to make the decision they did. “Although my colleagues appear to acknowledge that it is my exclusive right to decide whether a reasonable apprehension of bias has been established … their decisions conflict directly with mine on these very issues.”63 “Such intrusions,” he adds, “do not contribute to the proper resolution of issues such as these.”64
The majority, interestingly enough, avoids discussing the particular circumstances and events which were alleged to have created an apprehension of bias on the part of Justice Matlow. In fact, it is the sheer notoriety surrounding of the original hearing that seems to be the most important factor weighed by the majority in reaching their decision. The majority acknowledges the publicity swirling about the case before emphasizing that the concepts of impartiality and independence “are tied to individual and public confidence in the administration of justice.”65 “Perception in the minds eye of the public and the litigants,” the majority observes at one point, “is of unique importance in this case.”66
The majority also takes issue with Justice Matlow’s claim that it is acceptable for a judge to enter public or political debate at all, and asserts the paramount importance of judges “[striving] to ensure that their conduct, both in and out of court, maintains, and enhances confidence in their impartiality and that of the judiciary.”67 For the majority, a judge should be wary of entering into any public discourse which may find its way to court for fear of compromising the public’s perception of the judiciary’s ability to hear the matter in a neutral, objective manner:
A judge speaking about a matter likely to come before the court harms both the judiciary as a whole and the sound administration of justice. Such conduct undoubtedly gives rise to a reasonable suspicion by litigants that if it came to a hearing the matter would probably not be handled with complete impartiality.68
The majority’s legal justification for ordering a new panel by which the application could be heard de novo is, however, quite novel. Notably, the majority does not address Justice Matlow’s argument that the majority of the unanimous court would have carried the day regardless of whether or not Justice Matlow had recused himself. Instead, they cite an academic article which quotes an “argument” by Sir Anthony Mason, the former Chief Justice of the High Court of Australia:
[Judges of the same panel] cannot “order” [the challenged] judge to stand down. No doubt, the challenged judge will discuss the matter with his colleagues and seek their views. But if the most that fellow judges can do is to make informal suggestions, then the problem of ensuring that the court is properly constituted has to be approached from another angle. The only practical solution seems to be that a fellow judge who conscientiously believes that the impugned judge ought to stand down and wrongly refuses ought himself to stand down on the ground that he believes that the matter is proceeding in breach of the principles of justice.69
Thus while the majority refuses to recuse Justice Matlow on the grounds that “it is not for [them]” to do so, it nevertheless orders the panel itself be struck because they find a reasonable perception of bias. De facto, then, this case arguably stands for the proposition that judges of a collegial court can, in fact, consider whether or not a fellow panel member ought to recuse himself and grant relief to the moving party, if required.
Henco Industries Ltd. v. Haudenosaunee Six Nations Confederacy Council70
Perhaps the most sensational case in the news recently about a judge appearing to act according to extra-judicial reasoning is Henco Industries Ltd. v. Haudenosaunee Six Nations Confederacy Council.71 An apprehension of bias was cursorily dismissed by Justice Marshall early on in the case and no further allegations of bias were made by any party. The case, however, eventually unfolded in such a way that would illustrate why decision-makers should put the appearance of neutrality ahead of even well-intentioned motivations and be careful to exercise their discretion within the limits of the law.
The facts of the case are straightforward. In February 2006, a group of native protestors blockaded a large construction site in Caledonia. The court72 granted the applicant developer, Henco Industries, an injunction and issued an order requiring the protestors to leave by March 10, 2006. The protestors remained, and, a week later, the court found them in criminal contempt of court. The protesters did not leave. Some time later, and after much unrest, the applicant sold its land to the government and applied to the court to have the original order set aside. The government supported the application and wanted to allow the protestors to continue the occupation peacefully.
While the reasons of Justice Matlow in Save Our St. Clair were, at times, somewhat emotionally charged, the legal reasoning was very sound. The decision of Justice Marshall was, on the other hand, very strange from a legal perspective. First, he refused to dissolve the injunction until the court’s order for criminal contempt was disposed of. In his view,
[j]ust because Henco Ltd. and in this case, the Attorney General of Ontario and the Ontario Provincial Police are no longer interested in the enforcement of the injunction, this court is entitled to continue the prosecution of the case for the reason that defiance of court orders transfers the conduct in question from a mere civil contempt to the realm of public depreciation of the authority of the court and tends to bring the administration of justice into scorn.73
In support of his decision, Justice Marshall noted that the sale of the property to the Crown should not affect the court’s efforts in continuing with the criminal contempt. “Surely,” Justice Marshall opined, “the injunction continues with the property till the court dissolves it – if the law were otherwise – an injunction could be defeated by transferring ownership.”74
Second, Justice Marshall directed in his oral reasons of the August 8, 2006 decision that “there should be no further negotiations [between the Crown and the natives] until the barricades are lifted and the occupation is ended.”75
On August 22, 2006, the Ontario Court of Appeal heard a motion to stay the order of Justice Marshall dated August 8, 2006 and would stay the order which delayed the dissolution of the injunction until the criminal contempt had been disposed of. In doing so, the Court of Appeal noted that Justice Marshall seemed to deal with the injunction issue as though the province was a defendant in the litigation. The court asserted that, contrary to Justice Marshall’s opinion, injunctions are personal orders and do not run with the land.76 Having bought the property from Henco, the province “now stood in Henco’s shoes” and, as such, had a right to say whether or not it wished to continue enjoying the benefit of the injunction.77 After all, the Court of Appeal pointed out, an injunction is for the benefit of the applicant.
Notably, the court conspicuously skirted the obvious issue of Justice Marshall overstepping his jurisdiction and issued an endorsement which simply emphasized that there was no formal order of Justice Marshall instructing the parties to cease negotiations. In order to dispel any confusion, however, the Appeal Court added that the “parties should be free to continue to negotiate if they choose to do so without fear of being in breach or contempt of a court order. To be clear the order of Justice Marshall does not preclude continued negotiations.”78
The case would not have drawn the attention it did in the media, however, had there simply been mistakes in law. The legal leaps of Justice Marshall in his formal and oral judgments – each of which seemed squarely aimed at dissuading the natives from continuing their protest – were made suspect by his personal background. Justice Marshall, by his own admission, was very close to the community in which the case was heard. “I came back [to Cayuga],” he is quoted as saying in a recent Globe and Mail report, “because my roots are so deep here.”79 He also owns hundreds of acres of land in the county.80
Disconcertingly, this attachment could arguably be gleaned from the decision itself. Justice Marshall opens his judgment with what could safely be said to be a sentimental description of Cayuga as a “beautiful land” and “peaceful place” with a “large slow river” and a “clement climate [m]uch more kind than the rest of Canada.”81 Later, Justice Marshall notes how the citizens of Cayuga, “after 5 months of occupation, have seen security in their town replaced by lawlessness; protestors in battle fatigues, police officers in riot gear, and uncertainty of their future. Their property values reduced…”82 Perhaps most notably, Justice Marshall seems to be acting of his own accord throughout. After all, he called both parties to court to continue an injunction which neither party before him wanted any longer, and the decision, which is permeated with urgency and punctuated by many emphatic, one-sentence paragraphs, seems strangely focussed on affirming the court’s ability to enforce, single-handedly, what Justice Marshall refers to several times as “The Rule of Law.”83 All of this did not go unnoticed by the media or the legal community. University of Toronto Professor Lorne Sossin comments thus:
The more you find out [about Judge Marshall’s background], the more questions are raised about where we draw the line about being of a community in which you preside as judge and having an interest in cases coming before you. The last connection I would draw is puzzlement over a judge acting so much on his own initiative in this case, and the closeness of identification with the community. And I wouldn’t say that those add up to bias or an improper action on his part, but they start to raise questions.84
Indeed, when, at paragraph six of his judgment, Justice Marshall asks, “who is responsible for upholding the Rule of Law? The answer, of course is, each of us. I and each of my neighbours are equally responsible,” one cannot help but ask if he is writing as a concerned citizen of Cayuga or the neutral, third party that our judicial tradition demands of him to be.
Conclusion
As the Supreme Court noted in Wewaykum, supra, the impartiality of the courts “has been a matter of renewed attention across the common law world over the past decade.”85 This is perhaps no more true than in Canada. Our multicultural society has come to define itself by the protection it affords minority cultures, and, as decision-makers at all levels are relied upon to promote and cultivate this ideal; their objectivity will likely continue to come under greater scrutiny in the future.
The best way for the courts to avoid allegations of bias is for both lawyers and judges to familiarize themselves with the growing jurisprudence on the topic so they can make parties aware of potential conflicts before they delay or discredit the adjudicative process. As this paper has illustrated, this will often involve far more than a theoretical or textbook understanding of the concept of impartiality. Context will continue to play a key role. This said, however, the legal community as a whole should remain cognizant of the kinds of bias that can arise in a decision-maker – such as those stemming from business relationships, lack of independence, prior adjudication or knowledge of a case – and exercise due caution when encountering them. It is the legal community itself, after all, which can best preserve its reputation and role within our democratic society.
* Barbara A. McIsaac, Q.C., McCarthy Tétrault LLP, (613) 238-2105, bmcisaac@mccarthy.ca.
Anthony Moffatt, Student-at-Law, McCarthy Tétrault LLP, (613) 238-2177, amoffatt@mccarthy.ca.
1 Aristotle, The Politics, trans. Stephen Everson (New York: Cambridge Univ. Press, 1988), III, 1287a27-33 at 78.
2 From the Latin ratio, rationis, (f). The seventh edition of Black’s Law Dictionary at 1269 defines “ratio decidendi” as meaning, literally, “the reason for deciding.”
3 L.L. Fuller, “The Forms and Limits of Adjudication” [1978] Harv. L.R. 352 at 364.
4 The internecine debate among law scholars has produced many labels by which they identify themselves, such as “realist,” “attitudinal,” or “strategic.” Here, however, I use the broad term “behaviouralist” to refer to those scholars who explore the extra-legal factors behind judicial decisions.
5 Nancy Maveety, “The Study of Judicial Behaviour” in Nancy Maveety, ed. The Pioneers of Judicial Behaviour (Ann Arbor: University of Michigan Press, 2003) at 2.
6 Sara C. Benesh, “Harold J. Spaeth: The Supreme Court Computer” in Maveety, supra note 4 at 128.
7 In the words of one commentator, for example, certain “sophisticated legal scholars” believed that if doctrine was not to be seen as the foundation of judicial decisions, commentators would become “doomed to spend their professional lives presenting the opinions as smoke screens for judges’ economic, social, personal, and political preferences.” Laura Kalman, The Strange Career of Legal Liberalism (New Haven: Yale University press, 1996) at 47.
8 Benesh, supra note 6 at 119.
9 Harold J. Spaeth, letter to Schubert, May 8, 1961, as quoted in Sara C. Benesh, supra note 6 at 119.
10 Bora Laskin, “The Role and Functions of the Final Appellate Courts: The Supreme Court of Canada” in F.L. Morton, ed. Law, Politics and the Judicial System in Canada (Calgary: University of Calgary Press, 1984) at 52.
11 Randall P.H. Balcome et al. “Supreme Court of Canada Decision Making: The Benchmarks of Rand, Kerwin, and Martland” (Toronto: Carswell, 1990) at 349 [hereinafter Benchmarks]. It could be said that Chief Justice Laskin’s remark here is especially coy because the B.N.A. Act which is supposed to “guide” the court in federalism cases is over a century old, cannot be amended, and simply does not contemplate many of the legislative issues that face the courts today.
12 Benchmarks, supra note 11 at 261.
13 Benchmarks, supra note 11 at 267.
14 This is far from merely a Canadian concern. In Wewaykum, infra note 19 at para. 57, the court noted that the impartiality of the courts “has been a matter of renewed attention across the common law world over the past decade.”
15 [1978] 1 S.C.R. 369 [hereinafter Committee for Justice].
16 Committee for Justice, supra note 15 at 394-395. de Grandpré dissented in Committee for Justice on the grounds that, inter alia, the majority held a standard to a Board similar to that which is applied to a judge. “While the basic principle that natural justice must be rendered is the same,” de Grandpré J. observed, “its application must take into account the special circumstances of the tribunal.”
17 Baker v. Canada (Minister of Citizenship and Immigration) [1999] 2 S.C.R. 817 [hereinafter Baker].
18 Baker, supra note 17 at para. 21.
19 [2003] 2 S.C.R. 259 [hereinafter Wewaykum].
20 Wewaykum, supra note 19 at para. 16.
21 Wewaykum, supra note 19at para. 47.
22 Wewaykum, supra note 19 at para. 48.
23 Wewaykum, supra note 19 at para. 48.
24 Wewaykum, supra note 19 at paras. 47-48.
25 Wewaykum, supra note 19 at paras. 71-72.
26 Wewaykum, supra note 19 at para. 76.
27 Wewaykum, supra note 19 at para. 76 as quoted in Committee for Justice, supra note 15 at p. 395.
28 Wewaykum, supra note 19 at para. 76.
29 Wewaykum, supra note 19 at para. 83.
30 Wewaykum, supra note 19 at para. 84.
31 Wewaykum, supra note 19 at para. 84.
32 [2000] Q.B. 451 [hereinafter Locabail].
33 Locabail, supra note 32 at 480 as quoted in Wewaykum, supra note 19 at para. 86.
34 Wewaykum, supra note 19 at para. 92.
35 Wewaykum, supra note 19 at para. 93.
36 [2005] S.C.J. No. 40 [hereinafter Mugesera].
37 Mugesera, supra note 36 at 14.
38 Mugesera, supra note 36 at para. 15.
39 Hewart, C.J. in R. v. Sussex Justices Ex p. McCarthy [1924] 1 K.B. 256 at 259 (Q.B.D.)
40 Wewaykum, supra note 19 at para. 62.
41 Mugesera, supra note 36 at para. 15.
42 Mugesera, supra note 36 at para. 16.
43 (2005) 78 O.R. (3d) 331 [hereinafter Save Our St. Clair].
44 Save Our St. Clair, supra note 43 at para. 21. (Note that the reasons of the majority and minority of the court numbered their paragraphs separately.)
45 Save Our St. Clair, supra note 43 at para. 19.
46 Save Our St. Clair, supra note 43 at para. 27.
47 [1986] 1 F.C. 103 (Fed. C.A.) [hereinafter Atomic Energy].
48 [241 D.L.R. (4th) 685 [hereinafter Eckervogt].
49 Eckervogt, supra note 48 at para. 48 as quoted in Save Our St. Clair, supra note 43 at para. 38.
50 Atomic Energy, supra note 47 as quoted in Halsbury’s Laws of England (4th ed.) volume 1 at 87 (Emphasis mine).
51 [1966] S.C.R. 367.
52 at p. 372 as quoted in Atomic Energy, supra note 47
53 Save Our St. Clair, supra note 43 at para. 19.
54 Save Our St. Clair, supra note 43 at para. 29.
55 Save Our St. Clair, supra note 43 at para. 32. Justice Matlow also states that the moving parties were free to “raise the issue with [him] and invite me to provide correct information about [his] conduct…”
56 Save Our St. Clair, supra note 43 at paras 40-55.
57 R. v. S. (R. D.) [1997] 3 S.C.R. at paras. 111 and 113 per L’Heureux-Dubé and McLachlin JJ. as quoted in Save Our St. Clair, supra note 43 at para. 64.
58 Save Our St. Clair, supra note 43 at para. 65.
59 Save Our St. Clair, supra note 43 at para. 46.
60 Save Our St. Clair, supra note 43 at para. 46.
61 Wewaykum, supra note 21 at para. 93 as quoted in Save Our St. Clair, supra note 45 at para. 108.
62 Save Our St. Clair, supra note 43 at para. 113.
63 Save Our St. Clair, supra note 43 at para. 116.
64 Save Our St. Clair, supra note 43 at para. 116.
65 Save Our St. Clair, supra note 43 at para. 15.
66 Save Our St. Clair, supra note 43 at para. 13.
67 Save Our St. Clair, supra note 43 at para. 14.
68 “The Flynn Report,” Canadian Judicial Council (December 12, 2002) at paragraph 59 as quoted in Save Our St. Clair, supra note 43 at para. 16. Compare this proposition with Matlow’s argument, cited above; that a judge can enter a public debate so long as he recuses himself from any participation in any litigation arising from the debated matter.
69 Geoffrey Lester, Disqualifying Judges for Bias and Reasonable Apprehension of Bias: Some Problems of Practice and Procedure (July 2001) 24 Advocates’ Quarterly at 338-339 as quoted in Save Our St. Clair, supra note 43 at para. 20.
70 [2006] O.J. No. 3285 [hereinafter Henco].
71 Henco, supra note 43.
72 On March 9th, 2006, Justice Marshall made permanent an interlocutory injunction granted by Justice Matheson. (Conversation with Cayuga, Ontario Courthouse Registrar, Friday, September 29th, 2006).
73 Henco, supra note 70 at para. 43.
74 Henco, supra note 70 at para. 81.
75 Henco Industries Ltd. v. Haudenosaunee Six Nations Confederacy Council [2006] O.J. No. 3285 (Q.L.) (Ct. of Appeal) [hereinafter Henco Appeal].
76 Henco Appeal, supra note 75 at para. 15.
77 Henco Appeal, supra note 75 at para. 14.
78 Henco Appeal, supra, note 75 at para. 43.
79 James Rusk, “Presiding over his home and native land” Globe and Mail, August 21, 2006, Section Front. Online: http://www.theglobeandmail.com/servlet/story/LAC.20060821.JUDGE21/TPStory/National [hereinafter Presiding over Native Land].
80 Presiding over Native Land, supra note 79 at p. 3 (online)
81 Henco, supra note 70 at paras. 14-15.
82 Henco, supra note 70 at para 75.
83 Paragraph 10, for example, reads: “Consider this statement by the Chief Justice of Canada’s Supreme Court: “In the constitutional arrangements passed on to us by the British and recognized by the pre-amble to the Constitution Act 1867, the provincial superior courts are the foundation of the rule of law itself.” This is quoted from MacMillan Bloedel Ltd. v. Simpson [1995] 4 S.C.R. 725 at p. 753. The emphasis, although not noted in the judgment, is Justice Marshall’s.
84 Presiding over Native Land, supra note 79 at p. 3 (online)
85 Wewaykum, supra note 19 at para. 57.
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Constitutional, Civil Liberties and Human Rights
Supreme Court Rejects Challenge to B.C. Tax on Legal Services
David A. Wright*
In its decision in British Columbia (Attorney General) v. Christie, 2007 SCC 21, released on May 25, 2007, the Supreme Court of Canada overturned a decision of the British Columbia Court of Appeal that found that British Columbia’s tax on legal services was unconstitutional. In doing so, the Court rejected the respondent’s argument that there is a general constitutional right to legal representation in proceedings before courts and tribunals.
The case was brought by Vancouver lawyer Dugald Christie, who was tragically killed in an accident prior to the Supreme Court hearing while cycling across Canada to raise money on the issue. Christie worked with poor and low-income people in Vancouver and was required to remit the tax, even if he was unable to collect his bills. The chambers judge found as facts that some of his clients could not obtain needed legal services if he did not act for them, that if he were to charge them his hourly rate plus the tax, they could not pay him, and that if he is not paid the minimum amount which he charges in most of his cases he could not continue to practice law. As a result, she found that in some cases of low-income clients, the tax denies access to justice.
Both the chambers judge and the Court of Appeal held that there is a constitutional right to access to justice. The Court of Appeal found that this included “the opportunity to obtain legal services from qualified professionals, that are related to the determination and interpretation of legal rights and obligations by courts of law or other independent tribunals”.
The Supreme Court, however, rejected the argument that such a general right exists. It held that while there is a constitutional right to legal counsel in specific situations, namely under s. 10 (b) “on arrest or detention”, and under s. 7 in certain circumstances where an individual’s life, liberty, or security of the person is affected (New Brunswick (Minister of Health and Community Services) v. G. (J.), [1999] 3 S.C.R. 46), there is no right to representation in all circumstances where rights and obligations are at stake.
In finding that there is no such general right, the Court did not accept several arguments made by the respondent. It rejected the idea that the rule of law, a central principle of the constitution, founds a general right, noting that the broad right would be inconsistent with the inclusion of a specific right in s. 10 (b) and the limited rights recognized under s. 7, and that it had not historically been recognized as a component of the rule of law. It also found that the general right of physical access to courts recognized in B.C.G.E.U. v. British Columbia (Attorney General), [1988] 2 S.C.R. 214 does not mean that any legislated conditions on how and when people access courts are unconstitutional. However, the Court did leave open the possibility that a right to counsel might be recognized in specific circumstances and suggested that it may exist in situations other than under ss. 10 (b) and 7.
The Court also questioned the finding that there is a necessary connection between an increase in the cost of legal services and access, suggesting that the evidentiary record in this case was insufficient to support the inference the respondent put forward.
The Court’s decision makes clear that while there is no general right of access to legal services, the questions of when and whether such a right may exist in a specific case, and what types of government actions may infringe this right, are left for another day. In particular, the Court did not foreclose the possibility that the constitution, and in particular its guarantee of the rule of law, may provide a constitutional right to access to legal services in some circumstances.
The Court, therefore, has left open the possibility of development of the unwritten principles of the constitution articulated in cases such as Reference re Secession of Quebec, [1998] 2 S.C.R. 217 and Reference re Remuneration of Judges of the Provincial Court (P.E.I.), [1997] 3 S.C.R. 3 to address issues of access to justice. Whether and to what extent these principles are developed will be of interest and significance in the coming years.
* David A. Wright, Human Rights Tribunal of Ontario, (416) 212-6875, david.a.wright@ontario.ca. David is the Chair of the Constitutional, Civil Liberties and Human Rights Section, 2006-2007.
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Construction Law
Mortgage Priorities under the Construction Lien Act
Gregory D. Hersen*
Whether you are a general practitioner who is requested to provide advice on the occasional real estate transaction or construction lien file, or if your practice specializes in constru
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